Parental rights to custody can be upheld under the National Trust Act, unless legally disqualified, emphasizing the welfare of the child.

JUDGMENT

P.B.Suresh Kumar, J.

The petitioner in this Writ Petition (Crl) is the mother of an autistic ward (the ward) aged 39 years. The petitioner was married to one Salim and had three children in the said wedlock. The ward is one among them. After the birth of the ward, the petitioner and her husband were living separately and the ward was being looked after by the husband of the petitioner. It is stated by the petitioner that even though the husband of the petitioner married the sixth respondent thereafter, the said marriage also did not last and he was consequently residing in a shed with the ward. In the meanwhile, the husband of the petitioner also obtained an order for reasons best known to him under Section 14 of the the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (the Act), appointing him as the guardian of the ward with the sixth respondent as her alternative guardian. The husband of the petitioner died on 02.03.2023.

2. It is stated by the petitioner that the present health condition of the ward is such that she needs bystander care round the clock. It is alleged by the petitioner in the writ petition that the ward was not even aware of the death of her father. It is stated by the petitioner that when the people in the locality came to know of the death of the husband of the petitioner and the pathetic condition in which the ward was placed, the matter was brought to the local Grama Panchayat and the District Administration, and on their intervention, arrangements have been made for the stay of the ward in the fifth respondent institution, which is a society registered under the Board of Control of Orphanages and Other Charitable Homes. It is also stated by the petitioner that on coming to know of the death of the husband of the petitioner, the petitioner made arrangements for performance of the last rites and cremated his body. It is stated by the petitioner that thereafter, when she requested the fifth respondent to give custody of the ward to her, the fifth respondent insisted that since the ward was entrusted with them by the District Administration and the Grama Panchayat, the petitioner needs to obtain their concurrence for claiming custody of the ward. It is stated that even though the petitioner thereupon approached the District Administration and the Grama Panchayat for their concurrence to obtain the custody of the ward, they refused to give concurrence as the deceased husband of the petitioner obtained an order appointing him as the guardian of the ward and appointing his second wife as her alternative guardian under Section 14 of the Act. This writ petition(Crl) is instituted in the above background seeking directions to the District Administration and the Grama Panchayat to produce the ward of the petitioner before this Court and entrust her custody to the petitioner.

3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the District Administration and the learned Standing Counsel for the Grama Panchayat. The sixth respondent did not enter appearance on receipt of notice.

4. The proceedings in this matter indicates that even though the petitioner was insisting for an interim order for the custody of the ward, it is seen that this Court did not grant such an order as this Court was informed that the ward is taken care of well by the fifth respondent institution. The order obtained by the father of the ward appointing him as the guardian of the ward and appointing his second wife as the alternative guardian was another impediment for the petitioner to obtain the custody of the ward.

5. When this matter was taken up for final hearing, the stand taken by the District Administration and the Grama Panchayat was that they have no objection in handing over the custody of the ward to the petitioner if there is no legal impediment in doing so. At the same time, it was pointed out by the learned Gov